Can grandparents get contact with a grandchild?

A parent dies, or the parents separate badly, or there is a family rupture nobody wants to describe, and grandparents who saw a child every week stop seeing them at all.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

This is one of the most painful situations in family law and one of the most frequently misunderstood. There is a remedy, and the way to use it is the opposite of how most people instinctively approach it.

There is no grandparent right

Start here, because it saves a great deal of wasted argument.

South African law does not confer automatic rights of contact on grandparents by virtue of being grandparents. Parental responsibilities and rights belong to parents and, in defined circumstances, to others.

What the law provides instead is a route to apply.

Section 23 of the Children's Act 38 of 2005 allows any person having an interest in the care, well-being or development of a child to apply to the High Court, a divorce court in a divorce matter, or the children's court for an order granting that person contact with, or care of, the child.

A grandparent plainly can have such an interest. But the section does not hand it to you: you have to establish the interest, and then persuade the court that what you are asking for serves the child.

That distinction changes how an application should be written. An application built on "I am her grandmother and I have a right to see her" is weaker than one built on "this child has had a weekly relationship with me for seven years, here is what it consists of, and here is why losing it harms her."

Care and contact, not custody

The vocabulary changed two decades ago and using the old words signals that the applicant has not engaged with the Act.

Care is broadly what people used to call custody: where the child lives and who takes day-to-day responsibility.

Contact is the right to spend time with and communicate with the child.

Guardianship is the legal capacity to act for the child: consenting to marriage, to adoption, to the removal of the child from the country, to a passport application, and to certain litigation.

Most grandparents want contact. Some, where a parent has died or cannot cope, want care. They are different applications with different evidential burdens, and asking for care when you want contact makes the application look like an attack on the parent.

Our guide on the difference between custody and guardianship sets the concepts out.

What the court considers

The paramount consideration is the best interests of the child, and the Act sets out the factors. In an application of this kind the ones that carry weight are:

The nature of the existing relationship. Not the label, the substance. How often did you see the child, for how long, doing what? Did the child stay overnight? Did you do the school run, attend the sports, help with homework?

Your commitment. Over what period, and shown how.

Your contributions. Financial contributions towards the child's maintenance and upbringing, and practical ones: childcare while a parent worked, school fees, medical costs.

The effect of granting or refusing it. What the child gains or loses.

The child's own views, given due weight according to their age and maturity.

The degree of conflict, and the effect on the child of being placed in the middle of it. This factor works against applicants who present as combatants.

Which court

The children's court is free, informal, and designed to be used without an attorney. For most families it is the realistic route and the right starting point. The clerk of the children's court at your local magistrates' court can tell you how to bring the application.

The High Court is the upper guardian of all minors and has inherent jurisdiction. It is the right forum where guardianship is in issue, where the matter is genuinely complex, or where urgent relief is needed. It is expensive.

A divorce court, where the child's parents are in a divorce and the issue can be dealt with there.

Starting in the children's court is almost always better than starting in the High Court, both for cost and because a court designed for this is more likely to reach a workable arrangement than a court designed for commercial disputes.

Use the Family Advocate first

Before litigating at all, this is the step most grandparents do not know exists.

The Office of the Family Advocate promotes and protects the best interests of children in disputes about parental responsibilities and rights, it will attempt to mediate, and it is free. A family counsellor can interview everybody and conduct home visits, and the report carries substantial weight.

Our guide on how the Family Advocate works sets out the process. A great many of these disputes settle there, which is a much better outcome than a contested hearing between people who will be at the same funerals for the next thirty years.

Mediation is the other route, and our guide on parenting plans explains the document that usually results.

What actually persuades

Applications by grandparents succeed or fail on the same things, and it is rarely the law.

Specifics, not sentiment. "Every Sunday since she was born, lunch at my house, she has her own bedroom there, I collected her from school on Wednesdays for four years, I paid her crèche fees from 2021 to 2023." That is a case. "I love my granddaughter" is not, because so does the parent refusing you.

Documents. Photographs over years, school records naming you as an emergency contact, medical aid records, bank statements showing fees paid, messages arranging the weekly collection.

A modest, specific proposal. One Sunday a month, a video call on a fixed evening, attendance at birthdays. A grandparent asking for alternate weekends and half the holidays looks like a parent substitute and frightens the court as much as the parent.

Respect for the parent's position, expressed in the papers. A court reading an affidavit that attacks the mother's character on nine grounds is being told that granting contact will expose the child to exactly that conflict.

Insight into the rupture. If the estrangement followed something you did, saying so, and saying what has changed, is far stronger than pretending it did not happen.

What sinks applications

Making it about the adults. The case is about the child, and a court can tell within two pages which one you think it is about.

Undermining the parent to the child. The single most damaging thing a grandparent can do, and the fastest route to a refusal.

Self-help. Collecting the child without permission, or keeping them beyond an agreed time, converts a sympathetic applicant into a risk.

Litigating first. An application brought without any attempt at mediation invites the question why.

Asking for too much. See above.

Relying on the relationship as an entitlement. See the top of this page.

Where a parent has died

A distinct and more sympathetic situation, and worth separating out.

Where the grandparents' own child has died, the surviving parent has full parental responsibilities and rights and contact often ends with the funeral. The section 23 route is the same, and the interest is usually easy to establish, particularly where the child lived with or was regularly cared for by the grandparents.

Two practical notes. Where there is a maintenance question arising from the death, our guide on claiming maintenance from a deceased estate sets it out. And where the surviving parent cannot care for the child at all, the question becomes care rather than contact, and the children's court has wider protective powers than most people realise.

Worked example

This example is illustrative. A couple's son dies. His daughter, aged eight, had stayed with them every second weekend since she was two, and they paid her school fees for three years while their son was between jobs. After the funeral the child's mother stops all contact.

The grandparents' instinct is to go to the High Court and say they have a right.

What they do instead is approach the Family Advocate. An enquiry is instituted. They bring: photographs across six years, the school's records naming the grandfather as a secondary emergency contact, three years of school fee payments from their bank account, and messages arranging the fortnightly collection over several years.

Their proposal is deliberately modest: one Saturday a month, a video call on Sunday evenings, and attendance at the child's birthday and school concerts. Nothing overnight, initially.

Their affidavit says one sentence about the mother, which is that they recognise she is the child's parent and that their application is not a criticism of her care. It says nothing about the disagreements at the funeral.

A family counsellor sees everybody and visits both homes. The child, interviewed appropriately, says she misses her grandmother's dog.

The matter settles at mediation on substantially the terms proposed, recorded and made an order. Total cost: their time.

The version that fails is the same family, in the High Court, on an affidavit alleging that the mother is alienating the child and is an unfit parent, asking for alternate weekends and half of every holiday. The facts about the relationship are identical. What differs is that the papers have told the court the child will be pulled between two warring households, and that is a reason to refuse.